Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)
The bottom line
#Kenya's Court of Appeal struck down the false-publication offences in the Computer Misuse and Cybercrimes Act but upheld nearly everything else, including state surveillance powers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were procedural violations during the passing of the contentious Act by the National Assembly
- 2.Whether section 5 of the Act offends article 27(8) of the Constitution
- 3.Whether sections 16, 17, 31, 32, 34, 35, 36, 38(1), 38(2), 39 and 41 of the Act sufficiently provide for mens rea
- 4.Whether the impugned provisions meet the justification threshold in article 24 of the Constitution, including whether sections 48, 50, 51, 52 and 53 pose a severe threat to the right to privacy for want of sufficient safeguards, and whether sections 22, 23, 24(1)(c), 27, 28 and 37 violate the Constitution
- 5.Whether the impugned provisions meet the constitutional threshold
Key legal issues
#Constitutionality of sections 22 and 23 (false and misleading publications)
Unconstitutional for overbreadth and vagueness; likely to net innocent persons including innocent forwarders and satirists
The Court found the provisions 'akin to unguided missiles', targeting social media speech and likely to catch innocent forwarders unaware of falsity. In a world without universal truths, false information may later prove true (the Galileo example), and the provisions risk criminalising satire, opinion and journalistic inaccuracies. The National Cohesion and Integration Act already criminalises the targeted speech, a less restrictive means. The provisions therefore failed article 24.
Mens rea in sections 16, 17, 31, 32, 34, 35, 36, 38(1) & (2), 39 and 41
Constitutional; the statutory words sufficiently denote mens rea
Drawing on Black's Law Dictionary definitions and comparative authority (United States v X-Citement Video; United States v Morris), the Court held that 'intentionally', 'knowingly', 'willfully', 'unlawfully and without authorisation' import a culpable mental state and exclude accidental or negligent acts. The phrase 'without authorisation' has a limiting function, confining liability to circumvention of access controls rather than policy breaches.
Part IV investigative powers (sections 48, 50, 51, 52, 53) and the right to privacy
Constitutional; the interference with privacy is justified under article 24 given judicial oversight and built-in safeguards
Guided by ECtHR surveillance jurisprudence (Klass, Zakharov, Big Brother Watch), Indian authority (Puttaswamy, PUCL) and AmaBhungane, the Court held that surveillance powers are permissible if narrowly tailored with robust safeguards. The impugned provisions require judicial authorisation, specificity of warrants, and stated reasons; the six-month duration of real-time traffic data collection is not per se unconstitutional. Courts must, however, exercise heightened scrutiny in implementation.
Section 5 and the two-thirds gender rule
The challenge was speculative, premature and not justiciable because the Committee had not been constituted
Compliance with article 27(8) depends on the actual representatives sent by the contributing bodies, not the offices themselves. Since no breach had occurred, section 5 as drafted was harmless and constitutional; the issue could only arise once the Committee is constituted.
Public participation and post-public participation amendments
No violation; section 23 was a minor, not substantive, amendment requiring no fresh participation
Adopting the Supreme Court's two-pronged test in Cabinet Secretary for the National Treasury v Okoiti, the Court distinguished substantive from minor amendments. Section 23, introduced at the Committee of the Whole House, created an offence of the same genre as section 22 which had undergone participation; subjecting every amendment to fresh participation would stifle the legislative process.
Sections 24(1)(c), 27, 28 and 37
All constitutional
Section 24(1)(c) must be read with section 24 as a whole and its marginal note, and targets child pornography; section 27 targets cyberspace harassment with a clear legislative objective; section 28 targets bad-faith cybersquatting which enjoys no constitutional protection, article 40(5) mandating protection of intellectual property; section 37's limitation on distributing intimate images is reasonable and justified. None failed the article 24 threshold.
Legal principles established
#- Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018 are unconstitutional for overbreadth, being likely to net innocent citizens
- Words such as 'intentionally', 'knowingly', 'unlawfully' and 'without authorisation' in statutory offences satisfy mens rea requirements and provide clear notice of the mental element
- The phrase 'unlawfully and without authorisation' confines criminal liability to those who bypass access barriers and excludes mere breaches of workplace policies or contractual terms
- Not every amendment made to a bill after the public participation phase requires a fresh round of public participation; only substantive (material) amendments do
- The article 24 justification analysis requires proportionality, with the State bearing the burden of clear and convincing reasons and demonstrating that less restrictive means are unavailable or inadequate
- Courts authorising surveillance orders under Part IV of the Act bear a heightened constitutional responsibility to ensure orders are specific, time-bound and narrowly tailored
Court orders
#- 1.A declaration that sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018 are unconstitutional for being too broad and likely to net innocent persons
- 2.Variation of the High Court judgment only to the extent that sections 22 and 23 were struck down
- 3.Dismissal of all other grounds of appeal and affirmation of the constitutionality of the remaining impugned provisions
- 4.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition dated May 29, 2018 (petition number not stated)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal (the judgment invokes rule 88(1) of the Court of Appeal Rules; no constitutional provision for the appeal is expressly cited)
Relief refused
#Declaration that section 5 of the Act violates the two-thirds gender principle under article 27(8)
The challenge was speculative and premature as the Committee had not been constituted
Declaration that sections 16, 17, 31, 32, 34, 35, 36, 38(1) & (2), 39 and 41 are unconstitutional for lack of mens rea
The words used (intentionally, knowingly, unlawfully, without authorisation) sufficiently denote mens rea
Declaration that sections 48, 50, 51, 52 and 53 pose a severe threat to the right to privacy
The provisions contain judicial oversight and adequate safeguards and pass the article 24 proportionality test
Declaration that sections 24(1)(c), 27, 28 and 37 are unconstitutional
Each serves a legitimate aim, is clear enough, and its limitation is reasonable and justifiable under article 24
Declaration that the Act was enacted in breach of the Standing Orders and the constitutional requirement of public participation
Section 23 fell into the same genre as section 22 and was not a substantive amendment requiring fresh public participation
Costs
Each party to bear its own costs of the appeal: "the appropriate order is to direct the parties to meet their own costs of the appeal, which we hereby do"
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, this appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being too broad to the extent that they are likely to net innocent persons. It is only to this extent that we vary the learned judge’s judgment.
With regard to the costs of this appeal, we hold the view that this is a matter of public interest and considering the importance of the arguments advanced by the parties in the continuing construction of our constitutional architecture, for which we thank and commend learned counsel for their industry in research and erudite submissions, the appropriate order is to direct the parties to meet their own costs of the appeal, which we hereby do.
It is so ordered.
Our assessment of sections 22 and 23 of the Act is that they are so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens.
These provisions are a danger to the social media warriors who are on sentinel duty day and night, forwarding information without even reading what they are forwarding.
It confines criminal liability to those who cross an objective boundary, for instance, a password, access credential, or other access control mechanism, that signals a clear withdrawal of consent.
Courts, in particular, must be alive and alert to the risk that the Act can be deployed for political purposes and must carefully scrutinise every application before granting any order.
the justification analysis requires a weighing-up of the nature and importance of the right(s) that are limited together with the extent of the limitation as against the importance and purpose of the limiting enactment
Issues in the judgment
#Paragraph numbering is duplicated in the copy supplied: two paragraphs are numbered '98' and two are numbered '136', which may affect pinpoint referencing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)", Case Analysis (2026). Not stated in the judgment beyond being an appeal from Constitutional Petition No. 56 of 2018 (High Court, J. A. Makau, J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/430/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.